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O’Connor & Breyer on Judicial Independence

Retired Supreme Court Justice Sandra Day O’Connor encouraged her staff to enjoy whitewater rafting, Mexican take-out brunch…

  • Maggie Barron
April 10, 2008

Retired Supreme Court Justice Sandra Day O’Connor encouraged her staff to enjoy whitewater rafting, Mexican take-out brunch and tours of the Smithsonian. Justice Stephen Breyer loves to read French manuscripts and cultivated his distaste for footnotes during his clerkship to Arthur Goldberg. Such details were plentiful as Professor John Feerick introduced Justice O’Connor and her former colleague Justice Breyer to a well-heeled audience of lawyers and law students at Fordham Law School yesterday morning.

The two justices, and co-hosts of the day’s symposium, sat together at a small table for their introductory panel, “Judicial Independence and Impartiality.” Sandra Day O’Connor, dressed in a violet suit with gold buttons, her blonde hair now a shock of snowy white, frowned as she tried to twist the top off her water bottle, then leaned over towards Breyer and held it out to him. He wordlessly took it, unscrewed the top, and handed it back.

Sally Rider, Director of the William Rehnquist Center at the University of Arizona, kicked things off with a series of questions. Why, she asked O’Connor, did she decide to convene this conference on judicial independence in the first place?

O’Connor said she remembered seeing  “Impeach Earl Warren” signs in New Mexico and Arizona when she was growing up, and said that in her final years on the Supreme Court, attacks on judges increased, including proposals for mass impeachments of judges involved in the Terri Schiavo case, or proposals to cut judicial terms short, or a particularly disconcerting movement towards “Jail4Judges,” a campaign to allow citizen panels to review rulings from the bench, with the ability to even imprison—as the name tantalizingly implies—those who made bad decisions. These developments were “very depressing,” she said, and so she decided to use her retirement to call attention to these attacks on judges.

“An independent judiciary is an essential bedrock principle, and we’re losing it.”  The reason was in part the fact that civics and government are not a requirement for high school graduation. “One third of Americans can’t name the three branches of government, but two thirds can name a judge on American Idol!”

Money has been pouring in to state judicial elections in recent years, including races for State Supreme Court justices. A 2004 campaign for a seat on the Illinois Supreme Court brought in a record-setting $9.3 million in political contributions, including hundreds of thousands of dollars from State Farm, a company with a case pending before the court. And just recently,  Wisconsin voters were subjected to over 11,000 televised campaign ads in the weeks before their state’s Supreme Court race, over ninety percent of which were purchased by special interest groups (racking up a bill of well over 3.6 million dollars). Said O’Connor, “We put cash in the courtrooms, and it’s just wrong.” She then pointed to the room of lawyers and students. “You should take this seriously.” (A later panel backed up O’Connor’s concerns. New York Times legal correspondent Adam Liptak, Brennan Center attorney James Sample and Professor Michael Dimino discussed evidence that judges tend to rule in favor of their campaign contributors.)

She went on. “No other nation in the world elects judges.” She pointed to Georgina Woods, the chief justice of Ghana, sitting in the front row, as if to illustrate her point.

“Why are we tolerating this? What are we going to do about it?” Then, seeming to remember that the initial question posed to her several minutes before was “why did you convene this conference,” she added, “That’s why,” and sat back in her chair. The audience laughed and applauded.

Breyer took the floor next. Keeping state courts impartial is a major issue, but try talking about it with people “and they’re asleep after five minutes.” He recounted a trip to Russia he had made when serving as an appellate judge for the First Circuit after he was appointed by Carter. Meeting with Russian judges from across the country, he was surprised to hear their accounts of “telephone justice,” when the party boss calls and tells judges which way to vote. “They asked me, ‘do you have telephone justice in the United States,' and I had to explain to them that no, the President wouldn’t call you. He’d be crazy to do that.”

More and more people today think that judges make decisions based on politics rather than the law, he added. O’Connor began to interrupt, then changed her mind. “No, no,” she said, waving her hand at him, “you tell them.”

He continued. “It’s extraordinary that three hundred million people have agreed to settle disputes using the law, not sticks and stones on the street, like they do in some places.”

Sally Rider asked what people who are concerned about judicial independence can do. “It takes concerned citizens” said O’Connor. And it takes activism from the business community, because “legislators will listen to them more than the average housewife.” Breyer said this was a difficult message to get across to people. “That’s why the people I like talking to the most are 9th and 10th graders, because they want to know about this stuff.”

He encouraged the audience to get involved any way they could—writing to newspapers, or volunteering at schools to talk about the law. “Our method of resolving disputes in this country, what a treasure it is.”

“That’s a good place to stop,” O’Connor nodded. “I totally agree.”